Merely making copies of music available does not equal distribution, or primary copyright infringement, the judge said.

An Arizona judge has struck down the Recording Industry Association of America's claim that making music files available constitutes distribution of those files.

U.S. District Court Judge Neil V. Wake denied the RIAA's request for a summary judgment against a couple who had copied music files from their CDs onto their computer and downloaded file-sharing programs. The defendants said they never placed the music in a shared folder.

The judge concluded that even if defendant Jeffrey Howell had placed the items in a shared folder, a third party would have to dip into his hard drive to retrieve a copy. In other words, Howell could be responsible only for contributing to copyright infringement if it's proven that he put files into the shared folder and someone copied them, Wake said. Merely making copies of music available does not equal distribution, or primary copyright infringement, he said.

The RIAA claims that Howell and his wife committed music piracy and says it has evidence from screen shots showing the music on his computer was publicly available.

Howell maintains that music service Kazaa copied content from folders he did not make public and essentially shared his entire hard drive.

Howell is representing himself, but the Electronic Frontier Foundation filed an amicus brief on his behalf. The group has also posted the judge's 17-page decision on its Web site (PDF).

"It would make it quite a bit easier for the RIAA if they could go to court and simply say, "This person had our songs in their shared folder; we win,' " the EFF explained. "But that's not the law. If the RIAA wants to bring tens of thousands of lawsuits against individuals, they have to play by the rules and prove their cases. That means proving that actual infringing copies were made or that actual distributions took place."

Wake's rejection of the RIAA's motion means that the case will likely go to a bench trial in Phoenix later this year.

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